Juliet Akinyi Dima v Human Needs Project (Kenya) [2019] KEELRC 556 (KLR)
The bottom line
#A Kenyan court awarded an employee USD 32,500 because her employer fired her without reasons or a fair hearing and had no written contract.
What this practically means
#Executive summary
#Key legal issues
#Identity of the employer - HNP (Kenya) vs HNP (USA)
The employer was the Respondent, Human Needs Project (Kenya)
A letter to whom it may concern dated 8.4.2012 signed by Connie Nielsen, Co-founder and President of the Respondent, confirmed the Claimant's engagement as Kenya Project Director on an open-ended contract. Connie Nielsen also gave the Claimant instructions and was a founder and director of the Respondent, defeating the plea that instructions and payment came from the USA entity.
Terms of the contract of employment
The contract was open-ended with a monthly salary of USD 2,500
Appendix 3 set out the salary payable of USD 2,500 per month. The Respondent was responsible for drawing up the agreement under Sections 9(1) and (2) of the Employment Act and could not rely on its own omission to deny the existence or terms of the agreement.
Whether the termination was unfair and unjustified
The termination was unfair and unjustified
The termination letter disclosed no reasons for termination and there was no evidence of compliance with the notification and hearing requirements of Section 41. Under Section 43 the employer must prove the reasons for termination, failing which the termination is unfair under Section 45. Neither valid reason nor fair procedure was demonstrated.
Whether the Claimant was entitled to the remedies sought
Partially - notice pay and 12 months' compensation awarded; RFS wages, rent reimbursement and leave pay claims failed for want of proof
The court found for the Claimant on one month's salary in lieu of notice and maximum 12 months' compensation for unfair termination under Section 49(1)(c). However, the RFS claim, the rental reimbursement claim and leave pay were not proved and were disregarded.
Legal principles established
#- The employer bears the statutory duty to draw up a written contract of service and cannot benefit from its own omission to deny agreed terms
- Where the employer fails to prove valid reasons for termination and fair procedure, the termination is unfair under Sections 43, 45 and 41 of the Employment Act
Court orders
#- 1.1 month salary in lieu of notice of USD 2,500
- 2.12 months' salary as compensation for unlawful and unfair termination of USD 30,000 (total USD 32,500)
- 3.Respondent to pay costs of the suit
- 4.Interest on the award at court rates from the date of judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution (Employment and Labour Relations Court jurisdiction) - the judgment does not expressly state the provision; jurisdiction lies in the ELRC as an employment dispute
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juliet Akinyi Dima v Human Needs Project (Kenya) [2019] KEELRC 556 (KLR)", Case Analysis (2019). Cause 2250 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/556/eng@2019-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.